Определение за отправяне на преюдициално запитване
The Order of the National Court to Refer a Preliminary Question to the European Court of Justice

Summary/Abstract: The order of the national court for a preliminary reference to the European Court of Justice is the first immediate question of practical importance when it comes to European and national procedural law, or shall we say, the symbiosis between the two. It is these practical aspects of an otherwise crucial issue that are at the heart of the article which aims equally at judges and legal patricians in their quest to bring the ECJ into Bulgarian court proceedings. The stage of the national court proceedings at which the reference should be made is discussed in the first place. The well known postulate that the national court is free to decide at what point of the proceeding to refer, is revisited in the light of the requirement, as a condition for admissibility of the reference for a preliminary ruling, to lay down the facts and the applicable national law, as established by the referring court, in the order for a preliminary reference itself which undoubtedly limits the latitude of national courts when it comes to choosing the "right moment" to refer. The content that an order for a preliminary reference is supposed to have is then featured in a particularly practical manner, followed by a number of issues of crucial importance with respect to the resulting suspension of the pending proceeding before the referring national court, as well as the imposition of interim measures in the light of some of the better known ECJ's case law, such as Factortame, Zuckerfabrik, Atlanta and Dory. Finally, the article specifically focuses on a number of aspects of the possibility to appeal against the order of the national court to refer a preliminary question to the ECJ. The ECJ's case law on this specific issue is substantially criticized. The solutions adopted by certain Member States, such as Ireland, the United Kingdom and France are briefly discussed. The author takes the view that the order of the national court to refer a preliminary question should not be subject to appeal as a matter of Community law on the basis of a number of considerations, such as the very spirit of the preliminary ruling procedure, the reduced role, if any, of the parties, the risk for the universal and equal application of Community law throughout the EU, as well as the threat, at least in theory, of sabotaging the mechanism of article 234, paragraph 2 EC. Lastly but not least, the possible grounds for appeal are also discussed in me light of the unwelcome double control as to the admissibility of the reference, should the latter be subject to appeal, and the better position of the ECJ, rather than the appellate national court, to rule on such questions. Finally, the article comments on some of the relevant provisions of the new Bulgarian civil procedural code and in particular its chapter 59 dedicated to the preliminary ruling procedure.

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